Statement on release of Official Information Act documents

Statement to accompany the release of
Official Information Act documents

WingNut Films
welcomes the release of documents pertaining to the
industrial action that was initiated by the Australian based
trade union, the MEAA, against the film production of The
Hobbit in 2010.

Whilst we would not personally seek to
re-litigate this issue, it is our hope that these documents
will lead to a better understanding of the events as they
unfolded.

We also hope the release of these documents will
put to rest the unfounded conspiracy theories that sought to
characterize these events as a Hollywood studio dictating
terms to a sovereign government - a charge that is as
spurious now as it was then.

These papers reflect the
intense stress we, as filmmakers, were under finding the
future of our films suddenly under threat by unjustified
industrial action - a crisis that quickly lead to the very
real possibility that Warner Bros would have no choice but
to pull The Hobbit out of New Zealand.

Historically
terms and conditions of employment in the NZ film industry
have been set by discussion between unions, guilds and
producers groups around a conference table. In this case,
the MEAA deliberately singled out The Hobbit
production in advance, demanding that we enter into an
illegal collective bargaining arrangement.

We have no
issue with collective bargaining, nor did we set the
precedent of the vast majority of New Zealand actors being
employed as independent contractors. This status has come
about, in part, from New Zealand actors own desire to take
advantage of various tax exemptions - including being able
to off-set the 10% agents fee many of them have to pay. This
status, which was not forced upon actors, does however mean
they are subject to the New Zealand employment law which
states that they cannot enter into a collective bargaining
agreement. Put simply, we were being asked to agree to an
illegal demand – patently putting us in an impossible
position.

The Memo of Sept 28th, entitled "Background
Information" has a detailed account of the many issues
involved.The Basic
Situation

Most films are managed by short term
companies set up to deal with a particular film. In the case
of The Hobbit, the company is 3 Foot 7 Ltd. Most film
industry workers, whether actors, or crew are engaged for
short periods of time as Independent Contractors. It's
simply not practical for these short term film production
companies to take on the burden of treating its actors and
crew as "Employees", most of who work for only weeks or
months. Nobody disagrees with this, within the film industry
or government, and frankly it would be impossible for the
New Zealand film industry to function under any other
terms.

And yet the Australian based MEAA had quietly
arranged a world-wide blacklist of The Hobbit. This
was done well in advance of its first communication with
3Foot7 Ltd in August 2010. The lifting of this
“blacklist” required 3Foot7 Ltd to agree to enter into a
Collective Bargaining agreement, to be negotiated by the
MEAA. Why were they so confident of success?

The
"Bryson Case"

A Lord of the Rings crew member, who
was hired as an independent contractor, took 3Foot6 Ltd (the
Lord of the Rings production company) to court, to
argue that he was an "Employee". After a long legal fight,
he won that case however the judge who ruled in Bryson's
favour, Justice Shaw, acknowledged in her ruling that this
decision would create uncertainty within the film industry
and suggested that it was something SPADA (the Producers
Guild) needed to address. It would require greater clarity
in the employment laws relating to contractors and
employees. The MEAA made their demands upon The
Hobbit before the ramifications of the Bryson ruling
could be properly addressed between the industry and
government.

It was clear to us that the studio was not
going to be able to make The Hobbit in New Zealand.
We were facing a situation where a trade union - who had
already shown themselves ready to act unilaterally without
any consultation within the broader industry and without
engaging in genuine negotiations before instituting a
world-wide blacklist - could potentially exploit the Bryson
ruling. This would then throw into doubt the employment
status of the many thousands of people 3Foot7 Ltd were about
to begin hiring. It was an impossible situation for both the
producers of the film and the
studio.The "Law
Change"

There has been a lot of rhetoric from the
MEAA and its supporters, about Warner Bros forcing the NZ
government to "change the law".

Warner Brothers found
themselves in a situation they did not create or foresee.
They had already spent millions down here in New Zealand.
They were facing huge financial risks in continuing to
operate in such an uncertain employment environment.

The
studio needed certainty that people hired as independent
contractors would not be retrospectively deemed to be
employees, as had happened with the Bryson Decision.

The
New Zealand Government acted to protect its film industry by
clarifying the legal status of all independent contractors
working in film. What this so called “change to the law”
actually meant in practice was the status of actors and crew
hired within the film industry remained exactly the same as
the already established practice.

In
Conclusion

As a result of the MEAA’s industrial
action, we found ourselves in the surreal situation of being
asked by hundreds of actors and crew within the New Zealand
film industry, to defend them from the destructive actions
of trade union officials, the very people who were supposed
to be on their side.

The situation we found ourselves in
would have been ludicrous to the point of being absurd but
for the fact that thousands of NZ jobs were on the line and
hundreds of millions of dollars of income for our country
was going to be lost.

The e-mails contained in this
release represent a very upsetting time in our professional
careers. We could have made the Hobbit in Europe, or New
South Wales (who offered Warner Brothers a huge tax rebate
for the film), and earned the same fee for ourselves with a
lot less stress. But we fought to keep the film here and
work with the actors and crew we love.

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